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NITA Trustee Barbara Bergman to Receive Distinguished Achievement Award from UNM School of Law

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Our congratulations to go NITA Trustee Barbara Bergman for being one of four recipients of the 2017 Distinguished Achievement Award, in recognition of her years of teaching service at the University of New Mexico (UNM) School of Law. She will receive the honor at the law school’s annual dinner this Friday, October 20, at the UNM Student Union Building ballroom in Albuquerque.

“I am deeply honored to be receiving this award from UNM,” Barbara told The Legal Advocate. “I spent twenty-eight years teaching at the UNM School of Law, and I treasure the time I spent helping educate the wonderful students at that law school.” Barbara became a NITA Trustee in 2006, after several years of service as a program director and faculty member at NITA’s Southwest Deposition Skills, the Southwest Trial Skills, and the Connecticut Child Protection Trial Skills programs, among others.

Established in 1993, the Distinguished Achievement Award honors people who have served the legal community in a significant way, celebrates notable accomplishments and dedicated service by lawyers and others in the legal community to the UNM School of Law, the New Mexico legal community, and the greater community inside and outside of New Mexico.

The dinner, attended by approximately 450 guests or more each year, helps fund the Law Alumni/ae Association’s three full-tuition merit scholarships at the Law School through its proceeds. The dinner has raised over $500,000 benefitting the law school and law students.

For more information, click here to view the UNM press release.

Basic Trial Technology Skills

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

Trial technology is an umbrella term used for the ability to display exhibits in court electronically. When done right trial technology creates amazing efficiency and clarity of argument in the courtroom. Efficiency and clarity are obtained by the use of a shared set of monitors or projectors in the courtroom with exhibits available at a few keystrokes. Using technology allows lawyers to save time by quickly displaying exhibits in a shared viewing environment rather than passing around an exhibit that must be retrieved from a box and then a folder. Clarity comes from navigating an exhibit and showing the relevant sections clearly (via a large call out or projection of the selected text) contained on a computer.

There are four basic skills related to trial technology. These skills relate to the ability to perform the basic presentation of a handful of exhibits. Larger and more complex cases require advanced technical skills (see #4 below), and directing staff members or new associates into technical service is likely a bad idea.

  1. Electronic exhibit creation: The ability to create exhibits into a PDF or other image format for exchange and presentation.
  2. Basic Hardware competence: To connect a laptop to a projector or display.
  3. Software competence: To use a program to display exhibits in the courtroom whether a specialized trial presentation program or PowerPoint or Adobe Acrobat.
  4. Experience recognition: The ability to recognize when you are in over your head technologically and either invest in training/equipment and or a trial presentation vendor.

The skills and abilities go hand in hand with the selection of hardware that meets the minimal standards of the software intended for use at trial. In other words, you need the right equipment and software to do the job. For smaller cases specialized trial software is likely not necessary. You could simply open a PDF, spreadsheet, PowerPoint or Word document and display it onscreen. As your evidence presentation needs grow or become more complex, you will need progressively higher level technical skills and a dedicated in-house resource or a vendor.

The cost barrier to quality equipment and software has been greatly reduced. For example, a good trial laptop can be found for under $1000; there are many presentation software options (like PowerPoint and Prezi); training on specialized legal presentation applications like TrialDirector is plentiful and can be found at public university, trial software vendors and private programs; and there are many trial presentation vendors that can assist legal teams with their presentation needs.

Basic trial presentation (where only a handful of exhibits are displayed) is analogous to electronic court filing (ECF) using PDF files. The basic skills required for ECF are nearly the same as for trial presentation. One must be able to turn on their computer, generate the output of a PDF by converting a word processing, spreadsheet, presentation or other file type, and connect it to an external monitor or projector. Basic trial presentation really is no different; exhibits can be created and presented in PDF or their native application – no special software necessary. It is typically connecting to an external monitor or projector that gives teams the most issues and an area where lawyers should focus their technical skillset.

With cost and training barriers falling rapidly we continue to hear horror stories about computer failures in the courtroom. When done incorrectly the use of trial technology is excruciatingly painful to watch and all efficiencies are lost while lawyers troubleshoot their computers while judge and jury wait and watch. Even amongst big firms with large complex matters (i.e. – $$$) there can be a great deal of variation between the technical skills of the plaintiffs and defense ability to present at trial.

The inept use of technology in the courtroom provides the impression that the presenting attorney simply does not care about the judge and jury’s time. On the other hand, not using technology (especially if it is present in the courtroom or only one party is using it) is potentially frustrating to judge and jury because it produces a negative belief that the attorney lacks technical competence or similarly does not care about their time.  It’s worth noting that so called “David and Goliath” arguments are quickly becoming invalidated due to juries expecting legal teams be able to present technically to keep things interesting and moving along.

The horror stories about technical meltdowns are often true and defeat the efficiency goal of using trial technology because of the significant delay and frustration which are counter to their use. Technical issues are one of the main barriers to widespread technology implementation in the courtroom as judges use their worst courtroom experiences in deciding whether to allow subsequent use of technology in their courtrooms. A few examples:

  • An attorney asked to shut down their equipment after many errors and to use opposing professional trial tech.
  • Equipment failures and crashes that cause delays rather than efficiencies.
  • Presentations going “haywire” in the courtroom causing frustration and more technological delay.
  • Blaming technical issues on the courtroom IT staff or equipment.
  • Destroying or misusing courtroom equipment and furniture such as by disconnecting equipment and cables or using packing tape (rather than nondestructive gaffing tape) on furniture and flooring.

The horror stories for the most part are not tales of something gone unexpectedly wrong but are often due to poor preparation. A small error or two is OK but bumbling and stumbling throughout multiple delays and issues crosses a line. To be sure, technology issues will happen and computers will crash so you should have a backup plan for when technical issues occur.  For example, you may want several copies of your presentation or exhibits printed for distribution to the judge, witness and opposing counsel. You may want a backup computer ready to go with the presentation on it or to have a copy on a thumb drive.

In closing, the technological barriers for the use of technology in courtroom are quickly falling. The hardware and software have become cheaper to buy and easier to use while performance has drastically increased. It is easier than ever to find training through vendors and university programs – and many basic skills can be learned by performing a search on youtube.com and watching a video for free. With advance testing of equipment in the courtroom and practice on their equipment and software of choice, basic trial presentation skills are within reach for most attorneys and legal teams. Last, legal teams should be aware when they are in over their head with complex matters that may require a trial technology specialist when working with large volumes of data or require more complex technical skills like video editing so they can concentrate on their legal arguments rather than technical issues.

The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates, or its other professionals.

FTI Consulting, Inc., including its subsidiaries and affiliates, is a consulting firm and is not a certified public accounting firm or a law firm.

This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
Email Shannon at: Shannon.Bales@FTIConsulting.com

30(b)(6) Rules: Deposing the Corporate Representative

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The Rule 30(b)(6) organization deposition is the most powerful and efficient discovery tool available in complex litigation. In this handy and practical guide, author David Malone will help you get the most out of your chance to talk to – and pin down – organizations. Some of the topics include: obligations of both parties, understanding the specifications, how the Rule 30(b)(6) deposition affects nonparties, and more!

Retail Price: $39

Available in: Print, Epub, Mobi

Hold Technical Non-Compliance Accountable To Move Efficiency Forward

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

We all want to do our part to make courts and the trial process more efficient. Technical efficiency helps us present our case better by being organized and having the data at our fingertips; it lowers the cost to clients and eases the burdens on courts with backlogs of cases by being faster. Unfortunately, for many legal teams the use of technology at trial is an afterthought. Teams that don’t fully work out and understand the technical requirements for exhibit exchange or test their equipment prior to trial or even worse ignore agreed upon specifications during trial create barriers to efficient exchange of information at trial, slow down the administration of justice and create risk in the courtroom for technical failure.

There are great working benefits to legal teams of having your technical house in order (organization, technical compliance, war room performance). Simply being able to create, share and print an exhibit quickly is a tremendous benefit (and possibly a competitive edge) to a legal team in terms of being able to prepare and present. Going into trial, teams should have a very solid understanding of what their technical responsibilities and burdens will be when they agree to the technical specifications for an exhibit exchange. Lawyers should consult with team members who are familiar with the data as it currently stands and those that will be working with it at trial (typically a database/lit support person and a trial tech) so the best choices can be made in working with the teams’ data. You would be surprised at how often the plaintiff and defendant make combined decisions that are counter to their own self-interest and create tremendous burdens on their respective support staffs to comply with that are completely unnecessary. Last, there is a vibrant inhouse and consultant community that can assist and should be consulted upon in preparation for and during trial.

Some initial considerations:

  1. Initial technical considerations
    1. What format is our data currently in?
    2. Is there an exhibit exchange format that parties can agree to that lowers our technical burdens and workflow? (i.e.- what format will make this easy?)
    3. How much video and clipping does the case have?
    4. In house or Consultant trial tech
    5. Have the parties’ technical representatives been introduced and have they been empowered to resolve issues?
  2. Create a specific Trial Management Order
    1. What format PDF, TIFF, JPG
    2. What format load file (if required)
    3. Easy naming convention – Don’t overcomplicate exhibit names and branding
      1. Use Short/Simple prefixes (TX = trial exhibit, P = Plaintiff, D = Defense)
      2. 4 digit exhibit number and 4 digit page number is common
        (Example: TX0001-0001)
  • How to identify redacted exhibits in file naming conventions
    (Example: TX0001R-0001 – “R” for redacted)
  1. Are there color considerations?
  2. Can exhibits be straightened, darkened, or otherwise edited?
  1. Have sample files been exchanged and approved by both sides?
  2. How will video clips be exchanged?
    1. Recommendation: Exchange complete video as it will be played in court including sync’d documents to be played.
    2. Run sheet?
  • Synchronized files to be displayed?
  1. What is the exhibit creation workflow?
    1. How will exhibits be created?
    2. How will exhibits be named and branded?
    3. How will case data be managed and organized?
    4. Does the team have the right software?
    5. Who will be responsible for intake, processing and QC?
      1. Many teams use a “gatekeeper” to intake and process all files.
    6. Will the legal team need vendor help to convert and process files?
  2. Courtroom equipment rental and setup
    1. Recommendation: Use a 3rd party vendor
      1. Professional setup
      2. Split invoices
    2. Equipment testing and setup
      1. Teams should test the equipment (the actual equipment) to be used in the courtroom
        1. 50%+ of errors would never occur “but for” basic testing and configuration beforehand
      2. How will exhibits be exchanged?
        1. Is there a time limit for exhibits to be used next day?
        2. Email distribution list for confirmation?
        3. FTP may not be a good exchange mechanism for large or voluminous files that are needed for next day use due to upload/download speeds.
      3. Exhibit Presentation
        1. Use the exhibit number always
          1. Consider correcting the record for misidentified exhibits (i.e. – those identified using a number other than the exhibit number)
        2. Practice communication with the trial tech if you use one
          1. Use the exhibit number
          2. Do you know the difference between a highlight, callout and zoom?
  • Rehearse and practice presenting and communicating
  1. Practice what to do when equipment fails or exhibits crash

Those that don’t do their part are doing the legal community (and perhaps their client) a huge disservice. How can a team that does not understand their own data, take basic QC steps for their own technology or know how to comply with simple exchange standards be working efficiently themselves? A non-compliant exchange of exhibits incurs much risk for legal teams and can cause failure and delay in the courtroom. For example, delivering in technical formats that aren’t readily usable in court or were not named or branded correctly may cause the receiving team to work thru the night to convert the electronic files into a usable format. Plain and simple this is burden shifting and whether calculated or not, it is wrong and hampers the adoption and use of courtroom technology. Teams should be held accountable when they shift the burden and if egregious should be brought to the attention of the court.

Another example of avoidable error is when lawyers do not test their equipment in advance of trial. According to an informal survey of courtroom IT, more than 50% of problems are avoidable if attorneys simply tested their equipment in advance. The impression of attorneys who bumble and stumble through their presentation, technical failure or connecting their equipment by decision makers like the Judge and Jury is overwhelmingly negative. There are other signs that a party’s technical house is not in order. For example, when they use something other than the exhibit number to call out exhibits like an old bates/production number or their exhibits aren’t branded as agreed upon. Typically, it means they have not taken the steps necessary to prep data for efficient exchange and more importantly can cause significant Juror confusion by not using the correct naming convention (i.e. – the exhibit number).

In conclusion, Courts and legal teams are holding legal teams accountable for their noncompliance with exhibit exchange requirements, avoidable technical issues in the courtroom, and technical shenanigans. For many cases the volume and complexity of data is becoming routine so new methods of approaching trial should be considered that contemplate including those with technical expertise in the decision-making process and to hold firms accountable for their trial work product. One way to hold both sides accountable is to create a specific exchange agreement that contemplates technical, branding and naming formats for exhibits and video clips. Last, document exhibit exchange issues (time of exchange, technical compliance, quality issues, etc.) so that it can be brought to the courts’ attention if not immediately remedied or if it becomes a continuous problem. Parties that don’t comply should be compelled to do so.

This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
Email Shannon at: Shannon.Bales@FTIConsulting.com

Monthly Theme: Law Schools Part One

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TEACHING TRIAL SKILLS AT LAW SCHOOLS: SOME OPENING THOUGHTS

written by NITA guest blogger Judge McGahey

I’ve been teaching trial advocacy classes at the University of Denver’s Sturm College of Law since the early ‘80’s; I’ve been teaching for NITA about as long. I’ve seen ups and downs in how – and why – we teach trial skills. Since I know this month’s blog topic is about the conjunction of trial skills and law schools, I’d like to share some thoughts, in the hope that people wiser than I will weigh in.

First, let’s talk about the “why.” I think having – or at least understanding — trial skills are inherently valuable to every lawyer, even those who never plan to set foot in a courtroom. A transactional lawyer is likely at some point in his or her career to have a client who has to go to court on an important issue. Wouldn’t it be a good idea to understand the best way to present the client’s case, even if you aren’t going to do it yourself? And if you have to find a good trial lawyer for your client, wouldn’t it be a good idea to understand what makes that chosen lawyer the right person to present your client’s case to a judge or jury? I’ve had students over the years who took my advocacy classes for exactly these reasons. Interestingly, most were caught up in the process and demonstrated excellent advocacy skills.

Secondly, let’s consider the “how.” Most law schools offer some kind of advocacy training, whether it be classes, clinics, competitive trial teams, or some combination of all of these. Many schools offer their training in a highly organized, highly directed fashion, with each piece of the program tied to all of the others. But many do not. Even schools with active programs rarely have more than one or two full-time faculty teaching advocacy. Most schools have to depend on adjuncts (like me) as the backbone of their programs. This is a place where NITA-trained people can be particularly useful, as long as the law school is willing to use them. But the quality of the adjuncts can be outweighed by a lack of co-ordination at the academic level.

Next, let’s talk about “where.” By that, I mean where lawyers get their initial training in trial skills. One reason that law schools began focusing on “skills” courses as opposed to focusing only on “doctrinal” courses was the way the legal profession changed how lawyers were trained. For generations, graduates came out of law schools not knowing doodly-squat about how to actually practice law. Law firms assumed that new associates didn’t know anything and that the firm/organization/agency would have to train the newbies on how to do their job. But that’s an expensive proposition and more and more of that necessary training got pushed down to the law school level; notice the emphasis at many schools on producing “practice-ready” lawyers. As a consequence, “skills” courses and “experiential learning” became part of the core curriculum at many schools.

But I’ve recently been seeing some slippage of the perceived value of teaching advocacy skills at law schools. Classes don’t fill up automatically like they did in the past. This may be because schools are accepting fewer students, coupled with lower enrollments. But students seem to struggle with paying for classes that they don’t think will help them with bar passage. I suspect that this has something to do with the link between bar passage, getting a job and beginning to pay off the frequently crushing debt many students have at graduation. There is also the cost to schools of teaching advocacy; as noted many – if not most – advocacy programs rely on adjuncts rather than full-time faculty, to teach advocacy classes. Reduced enrollment equals reduced revenue which equals hard choices on where to spend those dollars.

What does this mean for law schools, law students and advocacy teachers? I’d suggest that those of us who see the value of advocacy teaching must renew our conviction on the value of these skills to the health of the legal system and the citizens of this country. No one thinks they need a lawyer until they need one. We must make sure that trial skills don’t fade away in the future and that the trial lawyers who come after us know what to do, how to do it – and why doing it is important.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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